Lawyers target wiretap by NSA

Defense attorneys ask if eavesdropping built case against their clients

December 28, 2005|By NEW YORK TIMES NEWS SERVICE

WASHINGTON --Defense lawyers in some of the country's biggest terrorism cases say they plan to bring legal challenges to determine whether the National Security Agency used illegal wiretaps on several dozen Muslim men tied to al-Qaida.

The lawyers said in interviews that they wanted to learn whether the men were monitored by the agency and, if so, whether the government withheld critical information or misled judges and defense lawyers about how and why the men were targeted for investigation.

The expected legal challenges, in cases from Ohio and Virginia to Florida and Oregon, add another dimension to the growing controversy over the agency's domestic surveillance program and could jeopardize some of the Bush administration's most important courtroom victories in terrorism cases, legal analysts say.

The issue of whether the NSA program was used in criminal prosecutions and whether it improperly influenced them raises "fascinating and difficult questions," said Carl W. Tobias, a law professor at the University of Richmond who has studied terrorism prosecutions.

"It seems to me that it would be relevant to a person's case," he said. "I would expect the government to say that it is highly sensitive material, but we have legal mechanisms to balance the national security needs with the rights of defendants.

"I think judges are very conscientious about trying to sort out these issues and balance civil liberties and national security."

While some civil rights advocates, legal experts and members of Congress have charged that President Bush did not have the authority to order warrantless eavesdropping by the NSA, the White House and the Justice Department continued to defend the legality and propriety of the program yesterday.

Trent Duffy, a spokesman for the White House, declined to comment in Crawford, Texas, on the specifics of a report in The New York Times that the NSA has tapped into some of the country's main telephone arteries to conduct broader data-mining operations in the search for terrorists.

But Duffy said: "This is a limited program. This is not about monitoring phone calls designed to arrange Little League practice or what to bring to a potluck dinner. These are designed to monitor calls from very bad people to very bad people who have a history of blowing up commuter trains, weddings and churches."

He added, "The president believes that he has the authority - and he does - under the Constitution to do this limited program. The Congress has been briefed. It is fully in line with the Constitution and also protecting American civil liberties."

Disclosure of the NSA program has caused ripples in the legal system, with a judge resigning in protest from the Foreign Intelligence Surveillance Court last week. The secret court, established by Congress in 1978 to grant warrants in terrorism and espionage cases, is seeking a briefing from the administration on why it bypassed the court and ordered eavesdropping without warrants.

At the same time, defense lawyers in terrorism cases around the country say they are preparing letters and legal briefs to challenge the NSA program on behalf of their clients, many of them American citizens, and to find out more about how it might have been used. But they acknowledge facing legal hurdles, including the fact that many defendants accepted plea deals and waived some rights to appeal.

Government officials, in defending the value of the NSA surveillance program, have said that it played a critical part in at least two cases that led to the convictions of al-Qaida associates - Iyman Faris of Ohio, who admitted taking part in a failed plot to bring down the Brooklyn Bridge, and Mohammed Junaid Babar of Queens, N.Y., who was implicated in a failed plot to use fertilizer bombs against British targets.

David B. Smith, a lawyer for Faris, said he plans to file a motion in part to determine whether information about the NSA program should have been turned over in the criminal case. Lawyers said they are also considering a civil case against Bush, claiming that Faris was the target of an illegal wiretap ordered by the president. A lawyer for Babar declined to comment.

Government officials with knowledge of the program have not ruled out the possibility that it was used in other criminal cases, and a number of defense lawyers said in interviews that circumstantial evidence has led them to question whether the NSA identified their clients through wiretaps.

The first challenge is likely to come in Florida, where lawyers for two men charged with Jose Padilla, who is jailed as an enemy combatant, plan to file a motion as early as next week to determine whether the NSA program was used to gain incriminating information on their clients and their suspected ties to al-Qaida.

Kenneth Swartz, a Miami lawyer, said, "I think they absolutely have an obligation to tell us" whether NSA was wiretapping their clients.

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